The New Global Legal Order

Why Justices Breyer and Ginsburg Must Go

Judicial activism has been on display in the rulings, speeches and actions of Supreme Court Justices Stephen Breyer and Ruth Bader Ginsburg, the two members of the court appointed by President Clinton. These justices are part of an unprecedented assault on our values, laws, Constitution, and form of government. They are waging an insidious campaign to replace U.S. law with "international law" and United Nations treaties.

In one of the most blatant endorsements of such an approach, Albany Law School Professor Martha F. Davis has written that the Supreme Court, when considering various issues, should "consult not only U.S. precedents, but international law." 1 Davis is a former legal director for the National Organization for Women (NOW) Legal Defense and Education Fund.

In the most visible manifestation of this effort, a United Nations bureaucrat, Bacre Ndiaye of Senegal, was invited on American soil by the U.S. State Department during the fall of 1997 to review the use of the death penalty in the U.S. Ndiaye, who carries the grandiose title of "U.N. Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions," issued a report finding a "significant degree of unfairness and arbitrariness" in the U.S. death penalty. He called on the U.S. to halt executions until it could ensure that death penalties are "administered fairly and impartially…" 2

John Bolton, a former assistant secretary of state, has declared that what is underway is a debate over control of the U.S. democratic decision-making process.

"The real agenda" of the U.N. and its allies "is to leverage the stature and legal authority of the United Nations (such as they are) into our domestic debate, an effort most Americans would find fundamentally illegitimate," he says. 3

Strange Justice

On October 24, 1996, — United Nations Day — Ruth Bader Ginsburg provided a revealing insight into the new global legal era. In the speech, which was the subject of some controversy, she examined how the Court reviews constitutional issues. In the official text, as it was prepared for presentation at Louisiana State University, Ginsburg criticized the Court’s Dred Scott decision, which condoned slavery, and went on to say:

"I appreciate too that in its declaration of human rights, the United States Constitution is not regarded as a model document for a modern state.

"Recall that, although the United States is not old among the world’s nations, its Constitution is the oldest written Constitution still in use. It was drafted in 1787, a terse bill of Rights was added to it four years later, and thereafter it has been amended on only 17 occasions. (More than half the world’s nations have constitutions written since 1970).

"The United States Constitution, as composed in 1787, is dominantly concerned with the structure of the national government and the powers of its three branches (legislative, executive, and judicial). The Constitution’s text details few individual rights. The Bill of Rights, added in 1791, is short and has distinct gaps…Moreover, the Bill of Rights does not even declare our most basic rights. Instead, it assumes they exist and simply tells the state to keep its hands off.

"Our principal rights declaring document, indeed, is not the 1987 Constitution or the 1791 Bill of Rights; it is the 1776 Declaration of Independence, a document not directly enforceable in court…

"Modern human rights declarations in national and international documents do not follow the U.S. Bill of Rights’ spare, government-hands-off style. Not only do contemporary declarations contain affirmative statements of civil and political rights; they also contain economic and social guarantees, for example, the right to obtain employment, to receive health care and free public education, even — more grandly — the state’s assurance of the conditions necessary to the development of the individual and the family. Any current effort at constitutional amendment to include such guarantees in the United States, I am confident, would encounter defeat far more stunning than the 1980s defeat of the proposed Equal Rights Amendment, which would have confirmed the equal stature of men and women before the law.

"It is not that the United States, today, is so much less of a welfare state than other nations that proclaim in a constitution state-assured rights to life’s basic needs… [W]e must rely on legislation, not the Constitution, to declare and implement safety net protections. Implementation of such protections is also accomplished by statute elsewhere. So the constitutional status economic and social safeguards lack in the United States does not have telling practical significance.

"Were we to place economic and social security guarantees explicitly in the Constitution, our style of constitutional review by courts would require adjustment."

A Blooper?

These remarks provoked a controversy when an Associated Press reporter at the speech said that Ginsburg had proposed "fleshing out" or expanding the constitution to include social and economic guarantees. Mr. Winston R. Day, chancellor and Pan-American Life Professor at Louisiana State University Law Center, demanded a correction and the AP acknowledged having "mischaracterized" her remarks.

However, the speech stands on its own. She was not saying that the Constitution should be expanded, only that it was largely irrelevant. In effect, she was saying that the Constitution was an outdated document which has been supplanted by legislation granting the "rights" not found within it. But her speech simply assumes that the federal government is supposed to have such power. She ignores the rights that are contained in the Ninth and Tenth Amendments, which affirm that the powers not given to the federal government reside with the people.

The Ninth Amendment, for example, declares, "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."

Ginsburg’s remarks reflect a fundamental misunderstanding of the American conception of where human rights come from. She seems to be saying that, unless the government acknowledges these "rights," they really do not exist. But both the Declaration of Independence, which Ginsburg asserts is not "enforceable" in court, and the Constitution, recognize human rights as God-given, not government-given.

It is extremely significant that Ginsburg made reference to how certain "international documents" do not follow the American model. She is presumably referring to various U.N. human rights treaties. Later, she commented on how "foreign observers of judicial activity in the United States" might react to U.S. courts determining cases and policy. These statements reflect a judge with an "appreciation" of international law and all that it represents.

In this context, it is significant that on January 27, 1997, Justice Ginsburg spoke at the U.S. Holocaust Memorial Museum on the subject of "Healing Wounded People: War Crimes Tribunals and Truth Commissions." The other speaker was South African Constitutional Court Justice Richard Goldstone, who also served as the prosecutor for the Yugoslavia tribunal.

In the wake of the holocaust, these war crimes tribunals in the former Yugoslavia and Rwanda have been seen by some as a means by which to deal with horrible human rights abuses. But they do not follow the post-World War II Nuremberg model of putting the perpetrators of these brutal atrocities to death. Their toughest possible sentence is life in prison. By contrast, the Nazis who were given death sentences at Nuremberg, Germany, were hanged for their crimes.

Justice for All?

The media portray these new U.N. courts, which issue secret indictments, as legitimate efforts to bring bad people to justice. But their operations have caused great concern. In one dramatic incident, American solders in Bosnia acting on behalf of the Yugoslavia court rushed from an unmarked van to seize a suspected war criminal. He was snatched, tied up, and thrown into the van. Earlier, U.S. forces had provided back-up for British troops who killed a war crimes suspect. Clearly, this "defendant" won’t be standing trial.

In another controversial case that came before the Yugoslavia tribunal, a Bosnian Serb named Goran Lajic was accused of carrying out atrocities against Muslims and Croats at a specific camp in northwestern Bosnia. He was one member of a group of Serbs indicted on charges of murder and torture. Oddly, in the indictment handed down by Richard J. Goldstone, then-prosecutor of the tribunal, the name of Goran Lajic appears but no specific charges appear next to it. The case was featured by the American Bar Association (ABA) -supported Coalition for International Justice as an example of how the court was doing its job. Lajic had been arrested in Germany in March of 1996 and transported to The Hague, where the tribunal is based. He was arraigned and pleaded innocent, saying he had "never set eyes" on the camp in question. More than two months later, however, on June 17, 1996, the tribunal issued an order "for the withdrawal of the charges" against Lagic and he was returned to Germany. Without any explanation or apology, the court said it turned out to be a case of mistaken identity.

In another case, British NATO troops snatched Bosnian Serb twin brothers as "war crimes suspects" and took them to The Hague, where they were accused of torturing and beating to death Muslin inmates at a prison camp. The two men insisted they were innocent and tribunal authorities finally admitted, in a major embarrassment, that it was all a mistake — another case of mistaken identity — and they were sent home with an apology. The brothers, who were apparently beaten during their arrest by NATO troops, announced they would sue the U.N. tribunal.

The American people, who are taxed to support these tribunals, must understand a central fact which has escaped the attention of most of the media — that they are illegitimate even under the U.N. Charter which supposedly grants them power and authority. An international tribunal, such as the emerging International Criminal Court (ICC), which is to have universal jurisdiction, is being established through a treaty signed and ratified by individual nations. Indeed, an ICC treaty is now being considered by the nations of the world. But both the Yugoslavia and Rwanda U.N. tribunals were established without the benefit of a treaty by the U.N. Security Council when it decided that Chapter VII of the U.N. Charter, authorizing the deployment of U.N. military forces, somehow gave the world body the ability to arrest, prosecute and jail individuals.

Ginsburg, who endorses these tribunals, is not the only justice to fall under the sway of international legal opinion. In a 1999 case, Knight v. Florida, Justice Stephen Breyer voted to give a stay of execution to a convicted killer scheduled for execution on death row in Virginia and cited several foreign court rulings as justification for his decision. In making the argument that the killer had remained on death row too long, Breyer said:

"A growing number of courts outside the United States — courts that accept or assume the lawfulness of the death penalty – have held that lengthy delay in administering a lawful death penalty renders ultimate execution inhuman, degrading, or unusually cruel."

Breyer went on to cite Pratt v. Attorney General of Jamaica, decisions by the Supreme Court of India and the Supreme Court of Zimbabwe, and a ruling of the European Court of Human Rights. "Obviously, this foreign authority does not bind us," he said. "After all, we are interpreting a ‘Constitution for the United States of America.’" He also mentioned that the U.S. Senate had imposed certain reservations on various human rights treaties that apply to the U.S. One such reservation, to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, specifically said that the U.S. could continue to impose the death penalty consistent with the Constitution, "including any constitutional period of confinement prior to the imposition of the death penalty." Nevertheless, Breyer argued that the Court could decide whether a particular period of confinement was constitutional and that "this Court has long considered as relevant and informative the way in which foreign courts have applied standards roughly comparable to our own constitutional standards in roughly comparable circumstances." He went on to say that, "Willingness to consider foreign judicial views in comparable cases is not surprising in a Nation that from its birth has given a ‘decent respect to the opinions of mankind.’" 4

In voting against further delay in the case, Justice Clarence Thomas noted that the defendant had been consistently arguing for delays only to ultimately complain about them. In a swipe at Breyer, Thomas noted that, if there were any support in the American constitutional tradition for such an argument, "it would be unnecessary for proponents of the claim to rely on the European Court of Human rights, the Supreme Court of Zimbabwe, the Supreme Court of India, or the Privy Council [of Jamaica]." Thomas also blamed the delays on the Court’s "Byzantine death penalty jurisprudence," a reference to conflicting decisions on capital punishment.

New World Order?

In a speech at the American Enterprise Institute, former Judge Robert H. Bork called Breyer’s reliance on foreign courts "a judicial version of black helicopters." Bork commented, "He found the foreign courts’ views were useful even though not binding. I am not sure why the Constitution of the United States, which has its own history and understood meaning, should be affected in any way by what foreign courts have to say about their constitutions." 5

In an April 14, 1998, decision, Breyer, Ginsburg and Justice John Paul Stevens argued for a delay in another death penalty case so that the Supreme Court could have more time to examine its international implications. They lost, however, in a 6-3 opinion.

In the case, Breard v. Greene, the government of Paraguay asked the U.N.’s International Court of Justice (ICJ), also known as the World Court, to issue an order to the U.S. to block the execution of Angel Francisco Breard, a citizen of Paraguay who was convicted of murder and attempted sexual assault on a Virginia woman in 1992. The World Court ordered the execution to be delayed, on the ground that Breard’s rights were violated under an international treaty, the Vienna Convention.

In a high-level split, Secretary of State Madeleine Albright wrote to Virginia Governor James Gilmore to stop the execution, while the U.S. Justice Department argued that the World Court had no jurisdiction over the case.

In Texas, Governor George W. Bush came under international attack for allowing a death penalty case to go forward. A delegation of Canadian citizens had flown to Texas to plead for the life of Stan Faulder, a Canadian who had been on death row there since 1977. Secretary of State Madeleine Albright had also gotten involved in this case, arguing that the convicted killer’s rights were abridged under a treaty.

Typically, the media attacked Bush and the death penalty. In an ABC News report, correspondent Steve Osunsami said that Texas was "a state that has executed more criminals than almost any other Western government," making it sound like Texas was engaging in indiscriminate killing. We were led to believe that Faulder may be just an innocent victim of Texas-style "justice," with Bush serving as chief executioner.

Osunsami aired a brief interview with Rubin Carter, described merely as a former death row inmate, who argued for Faulder’s release, saying "You may not have the right man." Governor Bush was given a few moments to defend the death sentence and the investigation of the case, but he appeared to be insensitive to the plight of a possibly innocent man.

Osunsami reported that Governor Bush was being accused of violating an international law, the Vienna Convention, mandating that foreign citizens accused of crimes be informed that they can seek legal help from their own governments. It was stated that Faulder was denied his right to seek help from the Canadian government. A so-called international lawyer was brought on to suggest that Bush was violating international law. Finally, it was noted that Secretary of State Madeleine Albright had written to Bush asking that the execution be delayed.

Faulder’s guilt was not at issue. He was convicted of killing a woman named Inez Phillips by bashing her in the head and stabbing her through the heart after a bungled robbery. Osunsami himself noted that Faulder had been scheduled for lethal injection on nine separate occasions, avoiding the death penalty for almost 20 years through the use of many different delaying tactics. This latest ploy, citing international law, was just another delaying tactic that had the added advantage for the liberal media of making George W. Bush look bad.

Legal Terrorism

References to international law and treaties are an increasingly popular legal trick. When a convicted killer in Georgia, Alexander Williams, was scheduled to be executed, his lawyers argued that his death would be a violation of the International Convention on Civil and Political Rights 6. It was also reported that "several national and international groups, including the European Union, had urged the governor to spare his life because of his age of the time of the crime."

When two Germans were executed in Arizona in November, 2000, the German government brought a case before the U.N.’s World Court, seeking financial compensation and contending that the U.S. had violated the Vienna Convention. A State Department representative, James Thessin, accused Germany of trying to "litigate the death penalty under the guise of a violation" of an international treaty. 7

In another case, when it was publicized that the State of Alabama had reinstituted "chain gangs" in its criminal justice system, the American Civil Liberties Union criticized the state and promised an investigation into whether international treaties were being violated.

In collaboration with a group called The Sentencing Project, Human Rights Watch has suggested that U.S. state laws which disqualify felons from voting may violate international human rights law. 8

On the federal level, President Clinton postponed the scheduled execution of a convicted killer and drug kingpin after it was reported that the Inter-American Commission on Human Rights, a body of the Organization of American States, was investigating the case to determine if the defendant’s rights had been violated under a treaty known as the American Declaration of the Rights and Duties of Man. 9

Secret Meetings

Where might Justice Breyer have gotten such a dubious notion about foreign courts serving as guidance for the U.S. Supreme Court? Meetings have taken place between U.S. and foreign judges, during which plans have been made to integrate the legal systems of the nations of the world into one.

One such meeting was held from March 6-8, 1998, at the Aspen Institute’s Wye River Conference Center in Maryland. The Lawyers Committee for Human Rights (LCHR) was a co-sponsor of the event. 10 A list of workshop participants was provided 11 but the meeting was closed to the public.

Shelly Cryer, a media contact for the LCHR, says that LCHR President Michael Posner confirms that Breyer was at the event. 12 Posner said the event was designed to contribute to the "debate" over how the ICC could be an "impartial and independent body." 13 The LCHR is a group strongly committed to the ICC.

In its annual report, the Aspen Institute mentioned that the meeting of "eminent U.S. and foreign judges" was held under the sponsorship of its "Justice and Society Program," headed by Alice H. Henkin. Aspen said that funding for the activity was provided by the Ford Foundation.

In a "conference report" issued after the event, Breyer was identified as endorsing the concept of an "effective" ICC. What’s more, it was stated that the ICC could be effective "only if the Statute included an unequivocal obligation by the State parties to comply with the Court’s orders." 14

In 1998, Justice Sandra Day O’Connor 15 led a contingent of American judges on a ten-day, four-nation tour of Europe, where they had talks with the 15 judges at the European Court of Justice (ECJ) and other officials. Members of the ECJ made their own visit to the U.S. during April 15-22, 2000. According to the U.S. State Department, the president of the court, Rodrigues Iglesias, led a delegation of six judges, three Advocates General and the registrar "to meet with the Supreme Court of the United States and distinguished members of the United States judiciary and the American bar." The delegation participated in working sessions concerning the European Union and U.S. constitutional issues in New York, Washington, D.C. and Texas. A press release added:

"This visit by the European Court of Justice will build and develop the important relationship between the Court of Justice and the U.S. judiciary. It follows the official visit by a delegation of the Supreme Court of the United States, federal and state judges, attorneys, and law school faculty to the Court of Justice in 1998.

"The visit underlines the U.S. commitment to Europe, to transatlantic relations, and to the importance of encouraging the legal institutions of the United States and Europe to develop a fuller understanding of each other’s role, decisions and process." 16

Ford Foundation Money

The Ford Foundation, 17 which underwrote the conference featuring Justice Breyer, was also the sponsor of a November 12, 1998 symposium at which Richard Dieter, executive director of the Death Penalty Information Center, presented a paper arguing that the application of the death penalty in the U.S. defies not just the spirit "but the letter of these important treaties" prohibiting torture and racial discrimination.

But he mentioned several problems facing death penalty opponents who want to outlaw the practice on a global basis:

º The U.S. took "a specific reservation to the Civil and Political Rights Convenant essentially exempting itself from the ban on juvenile executions."

º º The U.S. took a reservation to the Torture Convention, stating that the U.S. understands that "international law does not prohibit the death penalty, and does not consider this convention to restrict or prohibit the United States from applying the death penalty consistent with the Fifth, Eighth and/or Fourteenth Amendments to the Constitution."

º º When 11 countries and the U.N. Committee on Human Rights stated that the U.S. reservation to the Civil and Political Rights Convention was invalid, the U.S. Senate threatened to withhold funds from U.S. participation in the work of the committee.

º º The U.N. Convention on the Rights of the Child prohibits the use of the death penalty for juvenile offenders, but the U.S. has not ratified the treaty "in part because we foresee the conflict between our practice of executing juveniles and the treaty."

Interestingly, in arguing that time on death row might constitute cruel and unusual punishment, Dieter cited Pratt v. Attorney General of Jamaica, the same foreign court ruling that Justice Breyer cited in the Knight case.

Dieter also argued that the International Convention on the Elimination of All Forms of Racial discrimination, which the U.S. has signed and ratified, might be used to outlaw the death penalty in the U.S. "Although the Race Convention does not specifically address capital punishment," he said, "it binds all state parties to ‘condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms…’" Since there is "persistent and pervasive evidence of racial discrimination in the application of the death penalty," Dieter argued, the U.S. might be in violation of the treaty.

Who Decides?

If American sovereignty means anything, it means that the American people, guided by their Constitution, decide the kind of society they should have. On the issue of crime and punishment, they have decided that they want capital punishment in order to banish heinous killers from their midst. Today, 38 states and the Congress have authorized the death penalty for certain crimes.

As noted by John Bolton, senior vice president at the American Enterprise Institute, "Through democratic decision-making processes, over long periods of time, American electorates have expressed broad, although certainly not universal, support for the death penalty. Under intense constitutional assault on the death penalty, both on substantive and procedural grounds, the general public in recent years has had to consciously confront the objections and inadequacies described in a range of Supreme Court decisions, and not simply adhere to the death penalty because of tradition or long-standing use. Americans in the last several decades have soberly examined the death penalty, and by and large reaffirmed it in a textbook demonstration of popular sovereignty at work."

But "sovereignty" is a concept that is alien to the global elites who want to save the lives of convicted killers and radically transform our criminal justice system. (30)

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*Cliff Kincaid is a veteran journalist who serves as president of America’s Survival, Inc.

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